Citation Nr: 1338564 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-22 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from May 1971 to June 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for a cervical spine disability. This matter was previously before the Board in January 2013 and was remanded for a VA examination. It has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As requested in the January 2013 remand, the Veteran's cervical spine was evaluated at a VA examination in February 2013. The VA examiner found that the Veteran had chronic cervical spine mechanical strain with degenerative joint disease, degenerative disc disease, without clinical radiculopathy, diagnosed in 2013. He also noted that the Veteran's claims file was reviewed. The examiner then found that the Veteran's cervical spine condition less likely than not originated in service. The examiner explained that "There is mention in STR's of some 'neck strain,' but the history, exam, diagnosis, and plan for tx or f/u was insufficient to tell if problem was considered serious or on-going and there are no further service PN references to neck, so I am assuming the problem was self-limiting and resolved." The Board finds the February 2013 VA opinion is inadequate. The VA examiner stated that there was mention of a "neck strain" in the Veteran's service treatment records. However, after a review of the service treatment records, the Board notes that in July 1973 there is a notation of a back strain and a lumbosacral strain, but no mention of a neck strain. Thus, it is unclear as to what "neck strain" the examiner was referring. While the examiner's statement appears to refer to the July 1973 treatment records, either the examiner was incorrect when noting a "neck strain" in his rationale, or he was referencing service treatment records not contained in the claims file. Therefore, a remand is necessary to obtain a clarification opinion, and the examiner is requested to clarify his statement or to identify which treatment record he was referring to when referring to a "neck strain." Further, the examiner fails to consider the Veteran's lay statements regarding his in-service injury in his rationale, and instead relies solely upon the documentation of injury in service treatment records in formulating a nexus opinion. The Veteran has stated that he was injured in service when he was hit in the face with a tow bar and fell back, landing on his back and head. Because an incomplete factual record was relied upon, the resulting opinion is not probative or adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the February 2013 VA opinion is inadequate, the claim must be remanded for a clarifying opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file and a copy of this remand to the VA examiner who performed the cervical spine examination in February 2013, or, if unavailable, to an appropriate clinician to determine whether the Veteran has a cervical spine disability that is at least as likely as not (meaning likelihood of at least 50 percent) related to service. The examiner should clarify what "neck strain" in the service treatment records he referenced in the rationale for the January 2013 opinion, and identify the specific service treatment records in which a neck strain is mentioned. The examiner should also consider the Veteran's lay statements regarding neck injuries in service. If the examiner determines that another examination is necessary to determine the claim, such should be accomplished. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a cervical spine disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).